By the Court.
Benning, J.
delivering the opinion.
Was the Court below right in overruling the motion for at Jiew trial ? This is the question.
[409]*409The first ground of the motion, is in these words:
aI. Error of the Court, in this: 1. In admitting in evidence a copy- of the-alleged marriage contract of James Johnson, in prospect of marriage with Mary Nally, without auy evidence that the original ever existed, and without accounting for its iion-production, if it ever did exist.”
[1.] The fifty second rule of Court is in these words i “ Whenever a party wishes to introduce the copy of a deed or other instrument between the parties litigant, in evidence, the oath of the party, stating his belief of the loss^or destruction^ of the original, and that it is not in his possession, power, or custody, should be a sufficient foundation for the introduction of such secondary evidence.”
In the present case, there was a waiver of the “ oath of the party” — that is of the oath of Jacob Thompson, he “ having been an infant, during most of the transactions.”
This waiver of itself, must be considered as an admission^ that he, if sworn, would have made the oath contemplated by the rule of Court
The copy offered in evidence, was a copy taken from th© xecord. That copy, therefore, was itself, some evidence that an original had existed.
It is true that to the admission of the copy, an objection was taken in this Court, that the instrument was not one entitled to record. But it is possible, that if this objection had-been taken in the Court below, it might have been obviated in some mode; as, by the introduction of witnesses to the execution of the instrument. The objection, therefore, if otherwise good, came too late. Harrison vs. Young, 9, Ga. R. 359.
The common law is satisfied with “slight evidence” of the existence of the original writing, when secondary evidence of the execution of the writing is offered. 1 Green. Ev. sec. 558 ; 6 Ga. 194.
And ought not this to be so, as,it is the very object of the secondary evidence itself, to prove the execution, that is„ [410]*410the existence of the original writing. When the showing is sufficient to satisfy the Court, that the party is not holding back primary evidence, the showing it would seem, ought to be considered sufficient to admit the secondary evidence.
We think, then, that there was, in what has been refered to, sufficient evidence, that the original had “ existedand, perhaps, also, a sufficient “ accounting for its non-production.”
There was however on the last point, further evidence, siamely, the evidence of Henry Johnson, who had been the guardian ad litem in the case, for Jacob Johnson, before the latter became twenty-one years old. This evidence was, that though he had never seen the original, or “ made any particular search” for it, “ specially,” yet, that he “ had examined, {to find documents touching” the case,) “ the papers of James Johnson and wife, deceased, and, a box of papers, found in the store of J. D. Smith, in Augusta, said to belong to P. H. .Mantzand “ that no such paper was found, in either place.” Mantz was dead ; his wife had again married, and had remove from the State — having, previously to the marriage, made a marriage settlement, in which Smith was her trustee. It did not appear, that there was any representative ofMantz’s estate. Under these circumstances, no further search was required. Henry Johnson had searched in every place in which, it was to be expected, that the paper might be found.
We think, then, the first ground of the motion, not sufficient.
The second ground of the motion, is in these words, “ in admitting parol evidence of title to real estate.”
The evidence here refered to, was the evidence of Parish, Little and Lawrence. We may take Little's, as a sample. It was as follows — “rented the lot of Mantz in November 1839, soon after Johnson’s death. The boys were in possession, and would not give it up, Mantz told them, they had better let it be rented out, and finish paying for it. He said, he was their mother’s trustee: had brought the lot, when sold [411]*411for her husband’s debts, and she still owed him sixty-five dollars for it. Witness did not understand which husband he meant.” There was evidence to show the lot to have been ■sold, for the first husband’s debts, in 1822, and bought by Mantz; none, to show, that it had ever been sold for the last husband’s debts. It may be presumed, that this renting of the lot by Little, finished paying Mantz for it.
Taking the above things to be true, they show that a trust in the lot resulted by implication of law, to Mrs. Nally, a trust in which, Mantz was the trustee; She the cestui que trust.
But trusts resulting by implication of law, are expressly ®xcepted from the part of the statute of frauds, which requires “ all declarations or creations of truts,” to be “ manifested and proved by some writing.”
[2.] Such trusts, therefore, may still bej'maqifested and proved, by matter not in writing.
We think, then, that there was nothing in the second ground of the motion.
The third ground of the motion, consisted also, in an objection to this same evidence of these same three witnesses, but an objection founded on á different reason; viz, the reason, that the admissions of Mantz, “showed,” as it was insisted, “ a title different from that set up in the bill, which was a title, as cestui que trust of Mantz, under the marriage settlement.”
The title set up in the bill, was a title under the marriage articles. Those were dated in 1824. By them, Johnson, the husband they contemplated, agreed to settle on trustees for Mrs. Nally, the wife they contemplated, and for her two children, “ all the right, title, interest, claim, or demand, which the said James Johnson” might, “by the solemnization of -said intended marriage, acquire in any property, real or personal,” then “ belonging to the estate of Cleon Nally, deceased, or to said Mary Nally individually.”
Now the admissions of Mantz, showed a resulting trust in Mrs. Mary Nally, commencing in 1822; for the buying of [412]*412the lot for her by him, happened in that year. The admissions, then, showed, that this trust was a part of Mrs. Nally’s “ right, title, interest, claim or demand,” covered by the articles.
The admissions, “ therefore went to prove the very title set up by the bill; they went to prove that the lot was a part of the property had in contemplation by the articles, which themselves failed to specify what particular property they did have in contemplation.
It is true, that the admissions might also serve to shotv, an independent trust in Mantz, one that would exist if there had been no articles at all, but yet, this does not prove, that they •could not show, that that trust was intended to be one of the things contemplated by the articles.
This third ground, then, is we think, not true in point of fact.
The fourth ground merely presents this same question, in another form.
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By the Court.
Benning, J.
delivering the opinion.
Was the Court below right in overruling the motion for at Jiew trial ? This is the question.
[409]*409The first ground of the motion, is in these words:
aI. Error of the Court, in this: 1. In admitting in evidence a copy- of the-alleged marriage contract of James Johnson, in prospect of marriage with Mary Nally, without auy evidence that the original ever existed, and without accounting for its iion-production, if it ever did exist.”
[1.] The fifty second rule of Court is in these words i “ Whenever a party wishes to introduce the copy of a deed or other instrument between the parties litigant, in evidence, the oath of the party, stating his belief of the loss^or destruction^ of the original, and that it is not in his possession, power, or custody, should be a sufficient foundation for the introduction of such secondary evidence.”
In the present case, there was a waiver of the “ oath of the party” — that is of the oath of Jacob Thompson, he “ having been an infant, during most of the transactions.”
This waiver of itself, must be considered as an admission^ that he, if sworn, would have made the oath contemplated by the rule of Court
The copy offered in evidence, was a copy taken from th© xecord. That copy, therefore, was itself, some evidence that an original had existed.
It is true that to the admission of the copy, an objection was taken in this Court, that the instrument was not one entitled to record. But it is possible, that if this objection had-been taken in the Court below, it might have been obviated in some mode; as, by the introduction of witnesses to the execution of the instrument. The objection, therefore, if otherwise good, came too late. Harrison vs. Young, 9, Ga. R. 359.
The common law is satisfied with “slight evidence” of the existence of the original writing, when secondary evidence of the execution of the writing is offered. 1 Green. Ev. sec. 558 ; 6 Ga. 194.
And ought not this to be so, as,it is the very object of the secondary evidence itself, to prove the execution, that is„ [410]*410the existence of the original writing. When the showing is sufficient to satisfy the Court, that the party is not holding back primary evidence, the showing it would seem, ought to be considered sufficient to admit the secondary evidence.
We think, then, that there was, in what has been refered to, sufficient evidence, that the original had “ existedand, perhaps, also, a sufficient “ accounting for its non-production.”
There was however on the last point, further evidence, siamely, the evidence of Henry Johnson, who had been the guardian ad litem in the case, for Jacob Johnson, before the latter became twenty-one years old. This evidence was, that though he had never seen the original, or “ made any particular search” for it, “ specially,” yet, that he “ had examined, {to find documents touching” the case,) “ the papers of James Johnson and wife, deceased, and, a box of papers, found in the store of J. D. Smith, in Augusta, said to belong to P. H. .Mantzand “ that no such paper was found, in either place.” Mantz was dead ; his wife had again married, and had remove from the State — having, previously to the marriage, made a marriage settlement, in which Smith was her trustee. It did not appear, that there was any representative ofMantz’s estate. Under these circumstances, no further search was required. Henry Johnson had searched in every place in which, it was to be expected, that the paper might be found.
We think, then, the first ground of the motion, not sufficient.
The second ground of the motion, is in these words, “ in admitting parol evidence of title to real estate.”
The evidence here refered to, was the evidence of Parish, Little and Lawrence. We may take Little's, as a sample. It was as follows — “rented the lot of Mantz in November 1839, soon after Johnson’s death. The boys were in possession, and would not give it up, Mantz told them, they had better let it be rented out, and finish paying for it. He said, he was their mother’s trustee: had brought the lot, when sold [411]*411for her husband’s debts, and she still owed him sixty-five dollars for it. Witness did not understand which husband he meant.” There was evidence to show the lot to have been ■sold, for the first husband’s debts, in 1822, and bought by Mantz; none, to show, that it had ever been sold for the last husband’s debts. It may be presumed, that this renting of the lot by Little, finished paying Mantz for it.
Taking the above things to be true, they show that a trust in the lot resulted by implication of law, to Mrs. Nally, a trust in which, Mantz was the trustee; She the cestui que trust.
But trusts resulting by implication of law, are expressly ®xcepted from the part of the statute of frauds, which requires “ all declarations or creations of truts,” to be “ manifested and proved by some writing.”
[2.] Such trusts, therefore, may still bej'maqifested and proved, by matter not in writing.
We think, then, that there was nothing in the second ground of the motion.
The third ground of the motion, consisted also, in an objection to this same evidence of these same three witnesses, but an objection founded on á different reason; viz, the reason, that the admissions of Mantz, “showed,” as it was insisted, “ a title different from that set up in the bill, which was a title, as cestui que trust of Mantz, under the marriage settlement.”
The title set up in the bill, was a title under the marriage articles. Those were dated in 1824. By them, Johnson, the husband they contemplated, agreed to settle on trustees for Mrs. Nally, the wife they contemplated, and for her two children, “ all the right, title, interest, claim, or demand, which the said James Johnson” might, “by the solemnization of -said intended marriage, acquire in any property, real or personal,” then “ belonging to the estate of Cleon Nally, deceased, or to said Mary Nally individually.”
Now the admissions of Mantz, showed a resulting trust in Mrs. Mary Nally, commencing in 1822; for the buying of [412]*412the lot for her by him, happened in that year. The admissions, then, showed, that this trust was a part of Mrs. Nally’s “ right, title, interest, claim or demand,” covered by the articles.
The admissions, “ therefore went to prove the very title set up by the bill; they went to prove that the lot was a part of the property had in contemplation by the articles, which themselves failed to specify what particular property they did have in contemplation.
It is true, that the admissions might also serve to shotv, an independent trust in Mantz, one that would exist if there had been no articles at all, but yet, this does not prove, that they •could not show, that that trust was intended to be one of the things contemplated by the articles.
This third ground, then, is we think, not true in point of fact.
The fourth ground merely presents this same question, in another form.
The Court charged the jury, “ that a notice” (to Eliza Haekett) “of any claim on the part of the complainants, was sufficient, without showing what was the character of the claim.”
This charge is made the fifth ground of the motion.
[3.] The charge,-we think, was right. Such a notice was sufficient to require Miss Haekett to enquire of the complainants what was the nature oí their title. And any notice requiring that of a purchaser, is a good notice. 1 Stor. Eq. sec. 400.
The next ground of the motion, was this ; “ that the verdict was against the charge of the Court, for the Court charged, that a bona fide purchaser for value, cannot be bound by any secret trust of the person under whom he claims, unless notice of that trust is brought home to such purchaser. And no notice of any such trust was shown. Moreover, the Court charged, that to entitle the claimant to a verdict, Mantzmust be proven to have accepted the trust under the marriage coir-[413]*413tract, and no such acceptance was shown. Moreover, the Court charged, that if Mantz held the property in his own right, under the sale of 1822, it could not be included in the settlement; and the evidence was, that he did so hold it.”
As to the first of these three specifications.
It is not true, that “no notice of any such trust was shown/» The answer admits, that Miss Hackett “had been informed that Jacob Johnson pretended to make some claim to the property.” True, the answer also says, that she “was advised and believed it to be utterly groundless.” But why did she not enquire of Jacob Johnson ? He could have told her better, and he, of all persons, was the one to enquire of.
Then, Parish told her “ the title was doubtful. She answered, that William T. Gould had advised her the title was good.” This may mean, that she knew what Johnson’s titl* was, and that, having legal advice on it, she considered it worthless.
Then, the property continued in the possession of Mr. St. Mrs. Johnson, from their marriage in 1824, to their death in 1839. It was never in the possession of P. H, Mantz,except as Mrs. Johnson’s administrator. The slightest enquiry by Miss. Hackett of Jacob Johnson in reference to his claim, would, probably, have put her in possession of this great fact.
As to the second of these specificiations.
There toas evidence going to show, that Mantz had “ accepted the trust under the marriage contract.” Little heard him tell “the boys,” (the complaints,) that “ he was their mother’s trustee.” What did he mean by this ? That he was trustee by the resulting trust aforesaid, or trustee by the marriage articles ? The jury might well infer, that he meant the latter, not being a lawyer, is it likely, that he ever knew, that there was such a thing as a resulting trust.
As to the last of these specifications.
It is not true, as we think, that the evidence was, that Mantz held the property in his own right. The evidence^ [414]*414as we think, shows that Mantz held the property in trust for Mrs. Johnson and her two Nally children, a trust resulting by implication of law, from his having purchased the property for her, and having been reimbursed by her, the money paid out by him in the purchase.
The last ground of the motion, was, that the verdict was contrary to the evidence.
We think, that the verdict was not contrary to the evidence.
The result is, that we think, the judgment right, overruling the motion for a new trial.
Judgment affirmed.